Litigation: Around the horn with the motion in limine

When a trial date approaches, litigators have their own checklists to keep track of pretrial preparations. As they go through the checklist, they may feel a little like a baseball manager filling out a lineup card. They should always find a spot in the lineup for the motion in limine, a versatile, utility infielder on whom you can rely to keep unhelpful information from reaching a jury’s attention.

The most common purpose of a motion in limine is to prevent the admission into evidence of testimony or documents that may damage a party’s case, but that also may suffer from some evidentiary shortcoming. It is, as the 7th Circuit once has noted, “a request for guidance by the court regarding an evidentiary question.”

First Base. A motion in limine can affect a trial in a number of ways, some to your advantage and some that carry risk. It can narrow the disputed issues a jury will be asked to consider, both in terms of liability and damages. In that way, it can shorten the trial. It is often used to set up a motion for directed verdict. On the other hand, a motion in limine may alert the opposing party to a weakness in its case of which it might not be aware.

Second base. Motions in limine are particularly useful when a judge has held an evidentiary ruling in abeyance. For example, if the court delays ruling on an evidentiary matter to see whether the party seeking admission will lay a sufficient foundation, a motion in limine is crucial to prevent the jury from considering that evidence until the foundation has been laid.

Shortstop. Many experienced litigators use motions in limine to prevent opposing counsel from mentioning potentially damaging—and potentially inadmissible—facts in an opening statement. Once the jury hears an assertion, it is outside a litigator’s control to get them not to think about it. Even a judge’s instruction to disregard the matter will only cause them to think about it a second time. The best course is to prevent the bell from ringing in the first place by obtaining an order precluding mention of the disputed fact in an opening statement.

Third base. Be clear in what you hope to accomplish with your motion in limine. The best way to do this is to have a proposed order ready that includes all the relief you seek, including both the exclusion of the evidence and the consequences of violating the order. Cover all bases by explicitly stating that the excluded evidence shall not be referred to in voir dire, opening statements, witness examination, objections, closing arguments and at any other time when the jury is present. The relief for a violation can range from a mistrial, with the offending party bearing the costs, to a judicial admonishment of counsel to a simple instruction to disregard the evidence. You can also use the fact that a party violated a motion in limine to oppose that party’s motion for a new trial.

Most litigators know the hotly disputed evidentiary issues as the case progresses from discovery to pretrial preparations. The potential subjects of a motion in limine will be clear long before the eve of trial. A well-prepared lawyer will know exactly where to place a motion in limine in the trial prep lineup.